1

NOT DESIGNATED FOR PUBLICATION

No. 124,476

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

PHILIP JULYAN CALDWELL,

Appellant.

MEMORANDUM OPINION

Appeal from Harvey District Court; JOE DICKINSON, judge. Opinion filed November 23, 2022.

Convictions affirmed, sentence affirmed in part and vacated in part, and case remanded with directions.

James M. Latta, of Kansas Appellate Defender Office, for appellant. 

Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., GREEN and MALONE, JJ.

PER CURIAM: Philip Julyan Caldwell appeals from his convictions for unlawful 

possession of methamphetamine with intent to distribute, unlawful possession of 

hydrocodone and morphine, and unlawful use of drug paraphernalia. He presents nine 

arguments including attacks on the sufficiency of the evidence and jury instruction error. 

Because the trial court's only nonharmless error was ordering a correctional supervision 

fee, we affirm Caldwell's convictions but vacate the correctional supervision fee.
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FACTS

On April 25, 2019, Caldwell was at the Happy Store gas station, in Newton, 

Kansas. Officer Gary Littlejohn of the Newton Police Department worked as a school 

resource officer. Dispatch told him that Caldwell, who had an active felony warrant, was 

walking the streets near his school. Littlejohn saw Caldwell walk into the gas station 

across the street. Littlejohn kept his eyes on Caldwell until other officers arrived. The gas 

station's surveillance camera footage showed Caldwell discreetly dropping a small black 

bag as soon as he noticed law enforcement outside the gas station.

Littlejohn walked into the gas station, arrested Caldwell on the outstanding 

warrant, and handed him off to Newton Police Officer Lucas Rindt. Then Littlejohn 

noticed the black nylon bag near where Caldwell had been standing. Inside the nylon bag, 

Littlejohn found a crystal-like substance and some unknown white pills. Caldwell saw 

Littlejohn pick up the bag and told Littlejohn that the bag was not his.

Rindt first instructed another officer to take Caldwell to jail and then searched the 

nylon bag. Inside, Rindt found crystal methamphetamine, hydrocodone pills, morphine 

pills, and a glass pipe which contained methamphetamine. Rindt testified that Caldwell 

had a larger amount of methamphetamine than for normal personal use and that he also 

had 14 empty plastic bags, which was not typical for normal personal use of 

methamphetamine.

Back at the police station, Detective Mitchell Nedrow helped Rindt with a more 

exhaustive inventory of the bag. Nedrow identified just under 20 grams of 

methamphetamine in total. He also determined that most of the pills were hydrocodone, 

except eight blue pills which were morphine. Nedrow testified that Caldwell was carrying 

enough methamphetamine to supply up to 28 people and the 14 empty plastic bags were 

likely for repackaging to distribute the drugs.
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The officers sent the crystals, pills, and pipe to the Kansas Bureau of Investigation 

(KBI) for confirmation. KBI confirmed that the crystals in the bag and in the pipe were 

methamphetamine. KBI also confirmed that 78 white oblong pills and 13 other white pills 

were hydrocodone and 8 blue round tablets contained morphine.

At the jury instruction conference, Caldwell made one objection to the instruction 

on possessing methamphetamine with intent to distribute. He asserted that the trial court 

needed to instruct the jury on the lesser included offense of possession. Caldwell made no 

other objections to the jury instructions. The State asked the trial court to instruct the jury

that Caldwell acted intentionally.

A jury found Caldwell guilty of possession of methamphetamine with the intent to 

distribute, in violation of K.S.A. 2018 Supp. 21-5705(a)(1), possession of 

methamphetamine, in violation of K.S.A. 2018 Supp. 21-5706(a), possession of 

hydrocodone, in violation of K.S.A. 2018 Supp. 21-5706(a), possession of morphine, in 

violation of K.S.A. 2018 Supp. 21-5706(a), and possession of drug paraphernalia, in 

violation of K.S.A. 2018 Supp. 21-5709(b)(2). The trial court sentenced Caldwell to 14 

years, 1 month (169 months) in prison. The trial court's journal entry includes a 

correctional supervision fee of $120. 

Caldwell timely appeals. 

ANALYSIS

Does the omission of an element in a jury instruction cause a structural error under 

section 5 of the Kansas Constitution Bill of Rights?

Caldwell argues that the jury needed to find beyond a reasonable doubt that he 

knew that the substance he possessed was methamphetamine. He contends that failure to 

instruct the jury in this way violated his right to a jury trial under section 5 of the Kansas 
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Constitution Bill of Rights. Caldwell further contends that harmless error analysis does 

not apply to this section 5 violation. The State asserts (1) that Caldwell cannot raise the 

issue for the first time on appeal and (2) that harmless error does apply and that any error 

in instructing the jury was harmless. 

Issues not raised before the trial court generally cannot be raised on appeal. See 

State v. Green, 315 Kan. 178, 182, 505 P.3d 377 (2022).

Constitutional grounds for reversal asserted for the first time on appeal are not 

properly before the appellate court for review. State v. Pearce, 314 Kan. 475, 484, 500 

P.3d 528 (2021).

There are several exceptions to the general rule that a new legal theory may not be 

asserted for the first time on appeal, including the following: (1) The newly asserted 

theory involves only a question of law arising on proved or admitted facts and is finally 

determinative of the case; (2) the consideration of the theory is necessary to serve the 

ends of justice or to prevent denial of fundamental rights; and (3) the trial court was right 

for the wrong reason. State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019).

Caldwell concedes that he did not raise before the trial court whether the omission 

of an element in a jury instruction caused a structural error under section 5 of the Kansas 

Constitution Bill of Rights. But he contends that we can reach this issue because it 

involves only a question of law and is finally determinative of the case and because it is 

necessary to serve the ends of justice. Nevertheless, even when an exception may allow 

for review of an issue for the first time on appeal, our Supreme Court has considered and 

rejected application of the exception in State v. Gray, 311 Kan. 164, 459 P.3d 165 (2020). 

The Gray court established that application of exceptions is discretionary: "The decision 

to review an unpreserved claim under an exception is a prudential one. Even if an 

exception would support a decision to review a new claim, we have no obligation to do 
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so. [Citations omitted.]" 311 Kan. at 170; see also State v. Rhoiney, 314 Kan. 497, 500, 

501 P.3d 368 (2021) ("[A] 'decision to review an unpreserved claim under an exception is 

a prudential one.' Even if an exception may apply, we are under no obligation to review 

the claim. [Citations omitted.]").

Caldwell here failed to give the trial court an opportunity to rule on the issue 

because he raised it for the first time on appeal. Through his inaction at the trial level, 

Caldwell waived this argument. To credit the argument now we would endorse an 

unacceptable form of sandbagging. See Finnegan v. Commissioner of Internal Revenue, 

926 F.3d 1261, 1272-73 (11th Cir. 2019) (characterizing raising new argument on appeal 

as sandbagging and declining to consider argument); Raich v. Gonzales, 500 F.3d 850, 

868 n.18 (9th Cir. 2007).

Because of Caldwell's failures to provide factual, historical, or legal support for his 

argument, we decline to review this constitutional claim.

Was the jury instruction for possession with intent to distribute methamphetamine clearly 

erroneous?

Caldwell argues that the jury instruction for possession with the intent to distribute 

methamphetamine omitted an essential element, requiring reversal of his conviction. The 

State argues that the instruction was not error because it correctly defined "possession," 

or, alternatively, that any error was harmless. 

When analyzing jury instruction issues, appellate courts follow a three-step 

process: (1) determining whether the appellate court can or should review the issue, in 

other words, whether there is a lack of appellate jurisdiction or a failure to preserve the 

issue for appeal; (2) considering the merits of the claim to determine whether error 

occurred below; and (3) assessing whether the error requires reversal, in other words, 
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whether the error can be deemed harmless. State v. Holley, 313 Kan. 249, 253, 485 P.3d 

614 (2021); see also K.S.A. 2021 Supp. 22-3414(3) ("No party may assign as error the 

giving or failure to give an instruction . . . unless the party objects thereto before the jury 

retires to consider its verdict . . . unless the instruction or the failure to give an instruction 

is clearly erroneous.").

At the second step, appellate courts consider whether the instruction was legally 

and factually appropriate, using an unlimited standard of review of the entire record. 

Holley, 313 Kan. at 254. In determining whether an instruction was factually appropriate, 

courts must determine whether there was sufficient evidence, viewed in the light most 

favorable to the defendant or the requesting party, that would have supported the 

instruction. 313 Kan. at 255.

Whether a party has preserved a jury instruction issue affects the appellate court's 

reversibility inquiry at the third step. 313 Kan. at 254. When a party fails to object to a 

jury instruction before the trial court, an appellate court reviews the instruction to 

determine if it was clearly erroneous. K.S.A. 2021 Supp. 22-3414(3). For a jury 

instruction to be clearly erroneous, the instruction must be legally or factually 

inappropriate and the court must be firmly convinced the jury would have reached a 

different verdict if the erroneous instruction had not been given. The party claiming clear 

error has the burden to show both error and prejudice. State v. Crosby, 312 Kan. 630, 

639, 479 P.3d 167 (2021). If the challenging party preserved the issue below, an appellate 

court applies one of two harmless error tests. If the instructional error impacts a 

constitutional right, an appellate court assesses whether the error was harmless under the 

federal constitutional harmless error standard, that is, whether there was no reasonable 

possibility that the error contributed to the verdict. When no constitutional right is 

impacted, an appellate court assesses whether there is no reasonable probability the error 

affected the trial's outcome in light of the entire record. Holley, 313 Kan. at 256-57.
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An appellate court exercises unlimited review when the gravamen of a defendant's 

complaint concerns a constitutional due process challenge. State v. Wade, 284 Kan. 527, 

534, 161 P.3d 704 (2007). But see State v. Williams, 295 Kan. 506, 517, 286 P.3d 195 

(2012) (characterizing an issue as a constitutional claim does not advance procedural 

posture when instruction was not requested below). 

When the parties offer a variety of competing reasons why the requested 

instruction was or was not factually appropriate, the appellate court bypasses the third 

step of the analysis and moves straight to the harmlessness inquiry. Thus, the court will 

assume—without deciding—that when the evidence is viewed in the light most favorable 

to the defendant, it was sufficient for a rational fact-finder to find for the defendant on the 

requested lesser included offense, and proceed directly to determining whether the failure 

to give the instruction was harmless. State v. Salary, 301 Kan. 586, 598-99, 343 P.3d 

1165 (2015).

When a party asserts an instruction error for the first time on appeal, the failure to 

give a legally and factually appropriate instruction is reversible only if the failure was 

clearly erroneous. State v. Butler, 307 Kan. 831, 845, 416 P.3d 116 (2018). The "'clearly 

erroneous'" principle is not a standard of review, that is, a framework for determining 

whether error occurred. Instead, it supplies a basis for determining if an error requires 

reversal of a conviction. Williams, 295 Kan. at 510; see State v. Lewis, 299 Kan. 828,

856, 326 P.3d 387 (2014).

Caldwell cites State v. Rizal, 310 Kan. 199, 208, 445 P.3d 734 (2019), holding that 

the State must show that the defendant knew the identity of the substance or that it was a 

controlled substance. He argues that the jury instructions were clearly erroneous. He 

contends that the instructions failed to tell the jury that a guilty verdict required a finding 

that Caldwell knew that the substance was methamphetamine or at least was a controlled 
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substance of some kind. He further argues that the instructions were clear error under 

K.S.A. 2021 Supp. 22-3414(3) and the error was not harmless. 

Caldwell's argument fails because he misrepresents the jury instructions. He 

complains that Jury Instruction No. 9 failed to tell the jury that a guilty verdict required 

them to find that he knew that the substance was methamphetamine. The trial court 

instructed the jury using PIK Crim. 4th 57.020 definition of possession in Jury Instruction 

No. 9. PIK Crim. 4th 57.020 (2013) reads in part as follows: "'Possession' means having 

joint or exclusive control over an item [methamphetamine] with knowledge of and the 

intent to have such control or knowingly keeping some item [methamphetamine] in a 

place where the person has some measure of access and right of control."

And Jury Instruction No. 10 told the jury that they needed to find that Caldwell 

intended to possess methamphetamine before they could find him guilty. Jury Instruction 

No. 10 read as follows: 

"The State must prove that the Defendant committed the crime of possessing 

with the intent to distribute at least 3.5 grams but less than 100 grams of 

Methamphetamine intentionally. 

"A Defendant acts intentionally when it is the Defendant's desire or conscious 

objective to do the act complained about by the State."

Appellate courts consider jury instructions as a whole. State v. Buck-Schrag, 312 

Kan. 540, 553, 477 P.3d 1013 (2020). Jury Instruction Nos. 9 and 10, read as a whole, 

simply do not contain the error that Caldwell complains of. Because the trial court 

instructed the jury that a guilty verdict required that Caldwell acted intentionally, we 

affirm.
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Was the instruction on the rebuttable presumption of distribution clearly erroneous?

Caldwell argues that the trial court committed reversible error in instructing the 

jury on intent to distribute. The trial court told the jury that, if it found that Caldwell 

possessed more than 3.5 grams of methamphetamine, it could infer that he intended to 

distribute methamphetamine. The State concedes that our Supreme Court has held that 

the PIK instruction does not follow the language of the relevant statute and is therefore 

legally inappropriate. But the State argues that the instruction error was harmless. 

The standard of review is the same as Caldwell's other claim of instructional error. 

We will reverse only for clear error. Williams, 295 Kan. at 516.

Caldwell objects to Jury Instruction No. 11, modeled on PIK Crim. 4th 57.022

(2013 Supp.), which states as follows:

"If you find the Defendant possessed 3.5 grams or more of Methamphetamine, 

you may infer that the Defendant possessed with Intent to Distribute. You may consider 

the inference along with all the other evidence in the case. You may accept or reject it in 

determining whether the State has met the burden of proving the intent of the Defendant. 

This burden never shifts to the Defendant."

This pattern instruction cites K.S.A. 2021 Supp. 21-5705(e)(2), which states the 

following: "In any prosecution under this section, there shall be a rebuttable presumption 

of an intent to distribute if any person possesses . . . 3.5 grams or more of heroin or 

methamphetamine." Caldwell argues that Jury Instruction No. 11 is legally inappropriate 

because our Supreme Court found that the pattern instruction sets out a permissive 

inference, while the statute provides a rebuttable presumption. State v. Holder, 314 Kan. 

799, 502 P.3d 1039 (2022).
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In Holder, a jury convicted Dominic O'Shea Holder of possession with intent to 

distribute and conspiracy to distribute 44 pounds of marijuana. Holder presented our 

Supreme Court with the same argument that Caldwell makes here—the trial court 

erroneously instructed the jury that it could infer intent to distribute based on the amount 

of controlled substance. The Holder court reviewed the development of presumptions and 

inferences through both federal and Kansas precedents. State v. Harkness, 252 Kan. 510, 

Syl. ¶¶ 12-14, 847 P.2d 1191 (1993), helpfully provides a tiered list from strongest 

presumption to weakest inference:

"A presumption may be either mandatory or rebuttable. A mandatory 

presumption removes the presumed element from the case because the State has proven 

the predicate facts giving rise to the presumption. That is, once the State proves certain 

facts, a jury must infer [the element] from such facts and the accused cannot rebut the 

inferences."

"A rebuttable presumption does not remove the presumed element from the case 

but nevertheless requires the jury to find the presumed element unless the accused 

persuades the jury otherwise. That is, once the State proves certain facts, the jury must 

infer [the element] from those facts, unless the accused proves otherwise. . . ."

"An instruction containing a permissive inference does not relieve the State of its 

burden because it still requires the State to convince the jury that an element, such as 

intent, should be inferred based on the facts proven."

The Holder court held that the instruction given was legally inappropriate. K.S.A. 

2021 Supp. 21-5705(e) provided for a rebuttable presumption, meaning that "once the 

State proved possession of 450 grams or more of marijuana, the jury must infer Holder's 

intent to distribute unless he proved otherwise." Holder, 314 Kan at 805. But the 

instruction told the jury that they "may" infer an intent to distribute, allowed the jury to 

"accept or reject" the inference in determining whether the State had met its burden to 

show intent, and expressly rejected the notion that the defendant had a burden to prove 

otherwise. In short, the statute requires the jury to make a stronger presumption, which 

helps the State make its case and places some burden on the defendant. By contrast, the 
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instruction given in Holder—and here—allows the jury to infer or not infer an intent to 

distribute, which is less helpful to the State in making its case and does not impose a 

burden on the defendant. 314 Kan. at 807.

The Holder court held that the instruction was legally erroneous because it did not 

accurately reproduce the language of the statute. 314 Kan. at 806. When an instruction is 

identical to that used in Holder, it carries the same flaw and is legally inappropriate. State 

v. Crudo, 62 Kan. App. 2d 464, 481-82, 517 P.3d 857 (2022); State v. Everett, 

No. 124,321, 2022 WL 4281994, at *4 (Kan. App. 2022) (unpublished opinion). The trial 

court erred by giving an instruction that was incorrect on the law.

After determining that the jury was instructed in error, we next must analyze 

whether the error requires reversal. Holley, 313 Kan. at 253. Because Caldwell raises a 

claim of instructional error for the first time on appeal, we will apply a clear error 

standard to the question of harm. 

The erroneous jury instruction contained a permissive inference, beneficial to 

Caldwell in comparison to the rebuttable presumption in K.S.A. 2021 Supp. 21-5705(e). 

If the court had properly instructed the jury following the language of the statute, then it 

would have applied the rebuttable presumption—once the State proved possession of 3.5 

grams or more of methamphetamine, the jury would have had to infer that Caldwell had 

the intent to distribute, unless he produced evidence to show otherwise. See Crudo, 62 

Kan. App. 2d at 482. But instead of telling the jury that it must presume intent to 

distribute based on the quantity of methamphetamine unless Caldwell proved otherwise, 

the trial court told the jury that it could accept or reject any inference of intent and that 

the burden never shifted from the State to the defendant. The effect of this error is that the 

State had a higher burden to produce evidence and persuade the jury than it would have 

had under K.S.A. 2021 Supp. 21-5705(e). If the jury found the evidence sufficient to 

convict Caldwell under a permissive inference, there is no reasonable probability that the 
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outcome would have been different if the State had a lower burden of proof under a 

rebuttable presumption. See United States v. Pinson, 542 F.3d 822, 832-33 (10th Cir. 

2008) ("An incorrect instruction that is beneficial to the defendant is generally not 

considered prejudicial.").

Finally, even if we were to ignore the beneficial aspect of the instruction, we 

conclude there is no reasonable probability that the error affected the jury's verdict given 

the evidence, including the quantity and packaging of methamphetamine. The jury 

watched surveillance video of Caldwell dropping the bag containing enough 

methamphetamine for up to 14 people. Caldwell also had 14 empty plastic bags alongside 

the methamphetamine and other drugs. The jury would not have reached a different 

verdict even if they had been properly instructed under K.S.A. 2021 Supp. 21-5705(e).

As a result, Caldwell's argument fails.

Did the State need to present evidence that methamphetamine has a potential for abuse 

associated with a stimulant effect on the central nervous system?

Caldwell attacks the severity level of his conviction for possession of 

methamphetamine with the intent to distribute. He argues that K.S.A. 2018 Supp. 21-

5705(d)(3)(C) classifies the offense as a drug severity level 2 felony but requires an 

additional element which the State failed to prove. He asserts that subsection (d)(3)(C) 

required the State to prove that methamphetamine has a potential for abuse associated 

with a stimulant effect on the central nervous system. The State did not present evidence 

that methamphetamine has a potential for abuse, or that it affects the central nervous 

system. Thus, according to Caldwell, we should remand this matter to the trial court for 

him to be resentenced under K.S.A. 2018 Supp. 21-5705(d)(1)(B), which lists the offense 

as a drug severity level 3 felony. Our standard for review under a sufficiency of the 

evidence challenge is the following:
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"'When the sufficiency of the evidence is challenged in a criminal case, we 

review the evidence in a light most favorable to the State to determine whether a rational 

factfinder could have found the defendant guilty beyond a reasonable doubt. An appellate 

court does not reweigh evidence, resolve conflicts in the evidence, or pass on the 

credibility of witnesses.'" State v. Aguirre, 313 Kan. 189, 209, 485 P.3d 576 (2021).

Statutory interpretation presents a question of law over which appellate courts 

have unlimited review. State v. Stoll, 312 Kan. 726, 736, 480 P.3d 158 (2021).

Caldwell walks through the statutes step by step to arrive at the conclusion that he 

was not validly convicted of a severity level 2 drug felony. The key to his argument is a 

distinction between the use of "designated" versus "defined" in K.S.A. 2018 Supp. 21-

5705. He begins with K.S.A. 2018 Supp. 21-5705(a)(1), which makes it a crime to 

possess with the intent to distribute ". . . any stimulant designated in subsection (d)(1), 

(d)(3) or (f)(1) of K.S.A. 65-4107, and amendments thereto." For purposes of this 

argument, Caldwell concedes that the State presented sufficient evidence that he 

possessed a stimulant "designated" in K.S.A. 65-4107 to convict him of possession with 

intent to distribute. K.S.A. 2018 Supp. 21-5705(a)(1). Then, Caldwell moves to the later 

subsections which specify the severity level of the crime.

K.S.A. 2018 Supp. 21-5705(d)(1) provides what can be considered the default 

severity levels. The relevant language here is the following: "Except as provided further, 

violation of subsection (a) is a: . . . (B) drug severity level 3 felony if the quantity of the 

material was at least 3.5 grams but less than 100 grams." Again, for purposes of this 

argument, Caldwell concedes that the State proved a stimulant under subsection (a)(1) 

and the relevant weight under subsection (d)(1)(B). Thus, Caldwell concedes that the 

State's evidence could have resulted in his conviction for a level 3 drug felony under 

K.S.A. 2018 Supp. 21-5705(d)(1)(B). 
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But Caldwell's conviction is a level 2 drug felony under an exception, and this is 

where Caldwell takes issue. The relevant language from K.S.A. 2018 Supp. 21-

5705(d)(3)(C) is the following: 

"(3) Violation of subsection (a) with respect to material containing any quantity 

of . . . methamphetamine, as defined by subsection (d)(3) or (f)(1) of K.S.A. 65-4107, and 

amendments thereto, or an analog thereof, is a:

. . . .

"(C) drug severity level 2 felony if the quantity of the material was at least 3.5 

grams but less than 100 grams."

Caldwell notices that this subsection uses the word "defined" whereas subsection 

(a)(1) uses the word "designated." Caldwell then looks to K.S.A. 65-4107(d)(3) to find a 

definition. And K.S.A. 65-4107(d)(3) states, in its entirety: "Methamphetamine, 

including its salts, isomers and salts of isomers," followed by the Drug Enforcement 

Agency (DEA) code of 1105 for methamphetamine.

Caldwell argues that the statutes contain a linguistic mismatch. K.S.A. 2018 Supp. 

21-5705(d)(3)(C) says "methamphetamine, as defined by [K.S.A. 65-4107(d)(3)]," but 

then K.S.A. 65-4107(d)(3) simply lists methamphetamine. "We all remember from 

elementary school that you cannot define any word by using that same word," argues 

Caldwell. Thus, Caldwell looks for and finds a definition of methamphetamine in the text 

of the subsection heading. K.S.A. 65-4107(d) states the following: "Any material, 

compound, mixture, or preparation which contains any quantity of the following 

substances having a potential for abuse associated with a stimulant effect on the central 

nervous system." Caldwell concludes that this text must be the definition of 

methamphetamine required by K.S.A. 2018 Supp. 21-5705(d)(3)(C).

Caldwell argues that because our Legislature made it a crime to possess 

methamphetamine that has "a potential for abuse associated with a stimulant effect on the 
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central nervous system," then the State needed to prove to the jury that the 

methamphetamine Caldwell possessed fit that definition. Caldwell notes that the State did 

not present evidence to the jury that he possessed a substance having a potential for abuse 

associated with a stimulant effect on the central nervous system. Thus, he asserts that the 

State did not provide sufficient evidence to convict him of the level 2 drug felony 

because it did not show "methamphetamine, as defined by [K.S.A. 65-4107(d)(3)]," as 

required by K.S.A. 2018 21-5705(d)(3)(C).

And Caldwell distinguishes his argument from State v. Lynn, No. 98,346, 2008 

WL 4291520, at *6 (Kan. App. 2008) (unpublished opinion). After Teresa Lynn's 

conviction for possession of methamphetamine, she made the nearly identical argument 

that the State did not obtain a valid conviction because it failed to prove that 

methamphetamine is a substance "'having a potential for abuse associated with a 

stimulant effect on the central nervous system.'" 2008 WL 4291520, at *6. This court held 

that the State need not prove that methamphetamine has such a potential for abuse 

associated with a stimulant effect on the central nervous system to secure a valid 

conviction. This court stated that "[t]he language in K.S.A. 65-4107(d) is a categorical 

heading and not an added element in the statute criminalizing the possession of the drug." 

2008 WL 4291520, at *6.

But Caldwell places his emphasis on the difference between "designate" and 

"define." The statute at issue in Lynn criminalized methamphetamine as "designated" by 

K.S.A. 65-4107(d)(3). And Caldwell concedes the same result under the language of 

K.S.A. 2018 Supp. 21-5705(a)(1) which criminalizes methamphetamine as "designated" 

by K.S.A. 65-4107(d)(3). But he argues that our Legislature must have intended a 

different result when it used different wording, requiring that to raise the severity level at 

K.S.A. 2018 Supp. 21-5705(d)(3)(C), the State must prove possession of 

methamphetamine as "defined" by K.S.A. 65-4107(d)(3). Caldwell argues that, by 
16

picking a different word than the one at issue in Lynn, our Legislature must have 

contemplated a different result.

Assuming without deciding that Caldwell's reading is correct, his argument 

nevertheless fails a basic logic check. Even if he is correct that our Legislature intended 

for K.S.A. 65-4107 to be a definition, it does not follow that the State would separately 

need to prove this definition. Our Legislature defined methamphetamine as a substance 

"having a potential for abuse associated with a stimulant effect on the central nervous 

system." K.S.A. 65-4107(d)(3). If the State proves that the drug is methamphetamine 

beyond a reasonable doubt to a jury, then it also proves the drug or substance has the 

potential for abuse associated with a stimulant effect on the central nervous system.

As the Lynn court stated: "K.S.A. 65-4107(b)-(g) organize the controlled 

substances listed in schedule II into categories of drugs with similar characteristics." 2008 

WL 4291520, at *6. The Lynn court accurately described the relevant language as "a 

categorical heading." 2008 WL 4291520, at *6. 

In this case, Caldwell's confusion seems to stem from the wordiness of K.S.A. 65-

4107(d). He seemingly misreads the definition. He walks through the relevant statutory 

provisions and arrives at the conclusion that K.S.A. 65-4107(d) is a definition. And he 

argues that the State must prove that the substance meets that definition. Even if we were 

to accept Caldwell's introductory steps as valid, which we do not, the State has met its 

burden. Based on K.S.A. 65-4107(d)(3), methamphetamine, including its salts, isomers, 

and salts of isomers, is a substance having a potential for abuse associated with a 

stimulant effect on the central nervous system. 

To illustrate, K.S.A. 65-4107(d)(3) is a descriptive definition that enumerates the 

characteristics of controlled substances included in schedule II offenses. Subsection

(d)(3) states the following: "(d) Any material, compound, mixture, or preparation which 
17

contains any quantity of the following substances having a potential for abuse associated 

with a stimulant effect on the central nervous system: . . . (3) Methamphetamine, 

including its salts, isomers and salts of isomers[,]" is a schedule II controlled substance 

(the possession of which is a schedule II offense).

This statutory construction of K.S.A. 65-4107(d)(3) can be vividly illustrated by

the following categorical syllogism:

Major premise: Possession of any material, compound, mixture, or preparation 

which contains any quantity of the following substances under (d) [(1) Amphetamine; (2) 

Phenmetrazine; (3) Methamphetamine; (4) Methylphenidate; and (5) Lisdexamfetamine]

having a potential for abuse associated with a stimulant effect on the central nervous 

system is a schedule II offense.

Minor premise: Methamphetamine, including its salts, isomers and salts of 

isomers, is a substance under (d)(3) having a potential for abuse associated with a

stimulant effect on the central nervous system.

Conclusion: Therefore, possession of methamphetamine is a schedule II offense.

Here, because the jury found beyond a reasonable doubt that the substance 

Caldwell possessed was methamphetamine, then it also found that the substance had a 

potential for abuse associated with a stimulant effect on the central nervous system. 

Because the State met its burden to prove all the elements of the offense, we affirm 

Caldwell's conviction.
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Is possession of hydrocodone and morphine illegal in Kansas?

Caldwell argues that there is a mismatch between the charging document and the 

jury instructions on the one hand and K.S.A. 2018 Supp. 21-5706(a) on the other hand. 

K.S.A. 2018 Supp. 21-5706(a) makes it a crime to possess "any opiates, opium or 

narcotic drugs," but does not include hydrocodone and morphine in its text. He argues 

that because the State failed to show that hydrocodone and morphine are opiates, opium, 

or narcotics that his conviction for possession lacks evidentiary support. Because the 

record shows that the State did present evidence that hydrocodone and morphine are 

narcotics, we affirm Caldwell's conviction.

Caldwell presents a similar argument of insufficient evidence and statutory 

interpretation as he did with his claim about methamphetamine's definition. But here he 

has an astute observation about what is present and what is missing from the text of 

K.S.A. 2018 Supp. 21-5706(a). K.S.A. 2018 Supp. 21-5706(a) states, in its entirety, as 

follows: "It shall be unlawful for any person to possess any opiates, opium or narcotic 

drugs, or any stimulant designated in K.S.A. 65-4107(d)(1), (d)(3) or (f)(1), and 

amendments thereto, or a controlled substance analog thereof."

The State charged Caldwell with possessing hydrocodone and morphine, which 

are not listed in the text of K.S.A. 2018 Supp. 21-5706(a). Caldwell argues that 

something, some law or fact, must connect hydrocodone and morphine to one of the 

listed categories in K.S.A. 2018 Supp. 21-5706(a). Caldwell notes that nothing in the 

statute connects hydrocodone and morphine to these categories, so he argues that the 

State bears the evidentiary burden to show factually that hydrocodone and morphine are 

opiates, opium, or narcotics.

Caldwell makes a fair point about the drafting of K.S.A. 21-5706. The phrase 

"opiates, opium or narcotic drugs" is the only group without a reference to the Uniform 
19

Controlled Substances Act, K.S.A. 65-4101 et seq. Caldwell notes that K.S.A. 2018 

Supp. 21-5706(a) makes it unlawful for any person to possess any stimulant designated in 

K.S.A. 65-4107(d)(1), (d)(3), or (f)(1), which lists amphetamine, methamphetamine, and 

their precursors. Similarly, K.S.A. 2018 Supp. 21-5706(b)(1)-(7) all include crossreferences. For example, under (b)(1) it is unlawful to possess "[a]ny depressant 

designated in K.S.A. 65-4105(e). . . ." No such citation exists for "opiates, opium or 

narcotic drugs" in K.S.A. 2018 Supp. 21-5706(a).

Because K.S.A. 2018 Supp. 21-5706(a) does not designate a list of opiates, opium, 

or narcotic drugs, Caldwell turns to another section of the Kansas Criminal Code. K.S.A. 

2018 Supp. 21-5701(l) defines "narcotic drug" as follows:

"[A]ny of the following whether produced directly or indirectly by extraction from 

substances of vegetable origin or independently by means of chemical synthesis or by a 

combination of extraction and chemical synthesis:

(1) Opium and opiate and any salt, compound, derivative or preparation of opium 

or opiate;

(2) any salt, compound, isomer, derivative or preparation thereof which is 

chemically equivalent or identical with any of the substances referred to in paragraph (1), 

but not including the isoquinoline alkaloids of opium;

(3) opium poppy and poppy straw;

(4) coca leaves and any salt, compound, derivative or preparation of coca leaves 

and any salt, compound, isomer, derivative or preparation thereof which is chemically 

equivalent or identical with any of these substances, but not including decocainized coca 

leaves or extractions of coca leaves which do not contain cocaine or ecgonine."

This definition includes no reference to any provision of the Uniform Controlled 

Substances Act. Also, this definition creates a slight redundancy. K.S.A 2018 Supp. 21-

5706(a) criminalizes "opiates, opium or narcotic drugs," but the definition of narcotic 

drugs at K.S.A. 2018 Supp. 21-5701(l) already includes opiates and opium.
20

K.S.A. 2018 Supp. 21-5701(m) defines "opiate" as "any substance having an 

addiction-forming or addiction-sustaining liability similar to morphine or being capable 

of conversion into a drug having addiction-forming or addiction-sustaining liability." And 

K.S.A. 2018 Supp. 21-5701(m) exempts dextromethorphan from the definition of 

"opiate," unless the Kansas Board of Pharmacy follows the procedure at K.S.A. 65-4102 

to change its designation. "Opium poppy" means the plant Papaver somniferum l. except 

its seeds under K.S.A. 2018 Supp. 21-5701(n). But "opium" has no definition.

In short, K.S.A. 65-4107(b)(1) lists opium and opiates, including hydrocodone and 

morphine, but nothing in the statute criminalizing possession points to that list. K.S.A. 

2018 Supp. 21-5706 criminalizes possession of "opiates, opium or narcotic drugs" 

without a cross-reference. From this, Caldwell argues that the lack of legal classification 

creates a fact question of classification. Caldwell contends that the State must produce 

evidence at trial that hydrocodone and morphine are substances criminalized under 

K.S.A. 2018 Supp. 21-5706(a), that is, opiates, opium, or narcotics. And K.S.A. 2018 

Supp. 21-5706(a) does not state that it is unlawful to possess "controlled substances," 

which could serve as catch-all language if it existed.

Caldwell presents an interesting question of statutory interpretation. But we need 

not further address this question based on Caldwell's contention that the State needed to 

present evidence that hydrocodone and morphine are opiates, opium, or narcotics. And he 

further asserts that the State failed to present any such evidence. Caldwell's contention is 

factually inaccurate. The State presented law enforcement testimony to the jury. Officer 

Nedrow testified that hydrocodone and morphine are "Schedule II narcotics." Even if the 

language of K.S.A. 2018 Supp. 21-5706(a) requires the State to show that the drugs are 

narcotics, the State presented evidence in this case that hydrocodone and morphine are 

narcotics. As a result, Caldwell's argument fails.
21

Did the trial court err in instructing the jury on unlawful possession of hydrocodone and 

morphine?

Caldwell argues that the trial court improperly instructed the jury because K.S.A. 

2018 Supp. 21-5706(a) criminalizes possessing "opiates, opium or narcotic drugs," not 

controlled substances, hydrocodone, or morphine. He asserts that the instructions were 

clearly erroneous and warrant reversal. The State, however, argues that the instructions 

were legally appropriate or, alternatively, that any error was harmless. 

Caldwell challenges Jury Instructions Nos. 16 and 18. Both instructions are 

modeled on PIK Crim. 4th 57.040 (2020 Supp.), which cites K.S.A. 21-5706(a) as its 

authority. Jury Instruction No. 16 reads as follows:

"In Count 3, the Defendant is charged with Possessing a Controlled Substance—

Hydrocodone. The Defendant pleads Not Guilty.

"To establish this charge, each of the following claims must be proved:

1. The Defendant is [sic] unlawfully possessed Hydrocodone.

2. This act occurred on or about the 25th day of April, 2019, in Harvey County, 

Kansas."

Jury Instruction No. 18 reads as follows:

"In Count 4, the Defendant is charged with Possessing a Controlled Substance—

Morphine. The Defendant pleads Not Guilty.

"To establish this charge, each of the following claims must be proved:

1. The Defendant unlawfully possessed Morphine.

2. This act occurred on or about the 25th day of April, 2019, in Harvey County, 

Kansas."
22

The instructions also defined possession and instructed the jury that both crimes 

had to be committed intentionally. Instructions 17 and 19 contained a definition of 

intentionally with respect to each charge.

Caldwell points out that the jury instructions do not include the words "opiates," 

"opium," or "narcotic drugs" from K.S.A. 2018 Supp. 21-5706(a). Caldwell argues that 

the absence of these terms is clear error. Caldwell asserts that if the jury was instructed 

that hydrocodone and morphine had to be opiates, opium, or narcotic drugs under K.S.A. 

2018 Supp. 21-5706, then the jury would have acquitted for insufficient evidence.

Caldwell's argument on jury instructions fails for the same reason as his 

insufficient evidence claim. He misreads the record. The State did present evidence to the 

jury that hydrocodone is a narcotic, and the State presented evidence that morphine is a 

narcotic. For a jury instruction to be clearly erroneous, the court must be firmly 

convinced that the jury would have reached a different verdict if the erroneous instruction 

had not been given. Crosby, 312 Kan. at 639. If the trial court instructed the jury that they 

needed to find that the substances were "opiates, opium or narcotic drugs" under K.S.A. 

2018 Supp. 21-5706(a), then the jury's verdict would have been the same. Thus, we 

conclude that Caldwell's argument is fatally flawed.

Did the trial court err by failing to instruct on the lesser included offenses for 

methamphetamine possession?

Caldwell argues that the trial court erred by only instructing the jury on possession 

of between 3.5 and 100 grams of methamphetamine with intent to distribute. He asserts 

that the lesser included instructions for possessing smaller amounts of methamphetamine 

were legally and factually appropriate. Because he did not request the instructions or 

object to their omission at trial, we review the instructions for clear error. K.S.A. 2021 

Supp. 22-3414(3).
23

Under K.S.A. 2021 Supp. 21-5109(b)(1), a crime is a lesser included crime if it is 

"[a] lesser degree of the same crime." An instruction on a lesser included crime is legally 

appropriate.

For a jury instruction to be clearly erroneous, the instruction must be legally or 

factually inappropriate and the court must be firmly convinced the jury would have 

reached a different verdict if the erroneous instruction had not been given. Crosby, 312 

Kan. at 639.

Caldwell makes no substantial argument for how the lesser included instructions 

could be factually appropriate. The jury convicted Caldwell under K.S.A. 2018 Supp. 21-

5705(d)(3)(C), for a quantity of at least 3.5 grams but less than 100 grams of 

methamphetamine. The lesser degrees of the same crime are K.S.A. 2018 Supp. 21-

5705(d)(3)(B), possession with intent to distribute at least 1 gram but less than 3.5 grams 

of methamphetamine, and K.S.A. 2018 Supp. 21-5705(d)(3)(A), possession with intent to 

distribute less than 1 gram. Caldwell simply asserts that these lesser included instructions 

were factually appropriate because if he possessed more than 3.5 grams, then he 

necessarily possessed 1 gram or less also, citing State v. Scheuerman, 314 Kan. 583, 591, 

502 P.3d 502 (2022).

But this court recently rejected the same argument in Everett, 2022 WL 4281994, 

at *7. Jeffry Albert Everett also argued that the trial court erred by not giving lesser 

included offense instructions for possession of less than 3.5 grams of methamphetamine. 

This court rejected Everett's citation to Scheuerman, noting that Scheuerman was a 

sufficiency of the evidence challenge, not related to jury instructions. Jury instructions 

were not at issue because the trial court convicted Scheuerman after a bench trial on 

stipulated facts. Scheuerman stipulated to possessing more than 3.5 grams of 

methamphetamine, which the Scheuerman court held was sufficient evidence to convict 

Scheuerman of possessing less than 3.5 grams. This court rejected Everett's citation to 
24

Scheuerman because the holding did not apply to jury instruction questions. The Everett

court quoted Scheuerman's holding that "'the test for the sufficiency of the evidence to 

support a conviction is distinct from—although related to—the "factual appropriateness" 

test for the giving of lesser included offense instructions.'" Everett, 2022 WL 4281994, at 

*7 (quoting Scheuerman, 314 Kan. at 592).

Like Everett, we reject Caldwell's argument that Scheuerman applies to jury 

instructions. The more appropriate comparison is to State v. Valdez, 316 Kan. 1, 512 P.3d 

1125 (2022), in which our Supreme Court held that lesser included instructions would 

have been factually appropriate. But Joseph Miguel Valdez had 1 gram of 

methamphetamine in his jeans pocket while the rest of the methamphetamine was in 

multiple packets inside a sunglasses case. "The jury could have concluded Valdez 

possessed only the 1-gram packet." 316 Kan. at 16. Here, the evidence established that 

Caldwell possessed 19.9 grams of methamphetamine. Caldwell dropped one black bag on 

the floor of the convenience store, which police officers picked up. All the 

methamphetamine was in that one bag. If Caldwell possessed the bag, then he possessed 

all the methamphetamine in it. No reasonable jury would have found that he intended to 

possess some lesser amount. Because the trial court did not err by omitting lesser 

included offense instructions, we affirm. 

Did cumulative error deny Caldwell his right to a fair trial?

Caldwell asserts that cumulative error deprived him of his right to a fair trial. 

Cumulative trial errors, when considered together, may require reversal of the 

defendant's conviction when the totality of the circumstances establish that the defendant 

was substantially prejudiced by the errors and denied a fair trial. In assessing the 

cumulative effect of errors during the trial, appellate courts examine the errors in context 

and consider how the trial judge dealt with the errors as they arose; the nature and 
25

number of errors and whether they are interrelated; and the overall strength of the 

evidence. If any of the errors being aggregated are constitutional in nature, the party 

benefitting from the error must establish beyond a reasonable doubt that the cumulative 

effect did not affect the outcome. State v. Alfaro-Valleda, 314 Kan. 526, 551-52, 502 

P.3d 66 (2022).

The trial court erred when it allowed the jury to infer from the amount of 

methamphetamine that Caldwell intended to distribute. But this error was harmless 

because the correct statutory language would have been more favorable to the State and 

would have shifted the burden of proof to Caldwell. And, assuming without deciding that 

the trial court erred by omitting the words "opiates," "opium," or "narcotic drugs" from 

the instructions for hydrocodone and morphine, such error was also harmless. Even if the 

trial court erred, this error was not interrelated with the permissive inference instruction 

error. Both errors, counted together, would not undermine the strength of the evidence 

that Caldwell possessed methamphetamine and narcotics. Any errors made by the trial 

court did not accumulate to deprive Caldwell of a fair trial.

Did the trial court err in ordering a correctional supervision fee?

Caldwell argues that the trial court erred by ordering a correctional supervision 

fee. The State concedes this is error. Both parties agree that the appropriate remedy is a 

nunc pro tunc order correcting the error. Because the fee is erroneous, we vacate that 

portion of the journal entry.

Appellate courts have unlimited review over whether an order is subject to 

correction by an order nunc pro tunc. State v. Fields, No. 97,292, 2008 WL 307680, at *3 

(Kan. 2008) (unpublished opinion) (citing State v. Vanwey, 262 Kan. 524, 527, 941 P.2d 

365 [1997]).
26

Under K.S.A. 2021 Supp. 21-6607(c)(3)(A), a correctional supervision fee applies

only when a trial court places a defendant on probation, grants a suspended sentence, or 

assigns him to a community correctional service program. Because the trial court 

sentenced Caldwell to prison, it erred in ordering a correctional supervision fee. The trial 

court ordered a fee which it had no authority to order and no remedy is possible except to 

vacate that part of the judgment. See State v. Becker, 311 Kan. 176, 191, 459 P.3d 173 

(2020) (vacating lifetime postrelease supervision which the trial court had no authority to 

impose, without the need for further proceedings); but see State v. Potts, 304 Kan. 687, 

709, 374 P.3d 639 (2016) (holding that a nunc pro tunc order was inappropriate and a 

remand was necessary to change lifetime postrelease supervision to 36 months of 

postrelease supervision). A journal entry of judgment may be corrected at any time by a 

nunc pro tunc order, which is appropriate for correcting clerical errors arising from 

oversight or omission. See K.S.A. 2021 Supp. 22-3504(b); Potts, 304 Kan. at 708. 

Because the trial court mistakenly ordered Caldwell to pay a $120 correctional fee, we

vacate that portion of the journal entry.

For the preceding reasons, we affirm the trial court on all issues except its entry of 

the correctional supervision fee. We vacate the supervision fee, instructing the trial court 

to enter a nunc pro tunc order to correct this error.

Convictions affirmed, sentence affirmed in part and vacated in part, and case 

remanded with directions.